Should a legal immigrant be deported for possessing one marijuana joint? That’s exactly what might happen to Haitian immigrant Jerry Lemaine. Back in January 2007, Mr. Lemaine was cited for possession of less than 25 grams, which is a fine of 100 dollars in the State of New York; no jail time. Normally, that would have been the end of it. However, after a Legal Aid lawyer convinced him to plead guilty, Jerry Lemaine was thrown into legal chaos. Despite the fact that Mr. Lemaine was a legal, permanent resident of the United States, immigration officials sent him to Texas, where he was imprisoned for three years, including 10 months in the hole. That’s right, three years in prison, ten months of which was spent in solitary confinement, all because of ONE joint. I’m fine with requiring immigrants to obey the laws of our nation, and if they don’t, they should have to pay consequences. But three years for one joint is ridiculous, for ANYONE, under any circumstances.
The reason this was allowed to happen is due to whacky loopholes in immigration courts in America. Had Mr. Lemaine remained in New York, a judge would have considered all the mitigating factors surrounding his arrest. The judge would have considered Jerry Lemaine’s contributions to society (school, work, and volunteering), his prior record (no prior jail time), and whether or not he was likely to be a risk to society if he was allowed to stay in the country. But instead, he was shipped to Texas, which is common for incarcerated immigrants from the Northeast part of the country. Once there, he was treated like a ruthless law breaker, imprisoned for years.
According to federal immigration law, two convictions for drug possession is considered default drug trafficking, which is a felony. Even though Jerry Lemaine was only convicted of simple possession in 2007, and once previously (same offense that was later dismissed), he was treated like the leader of a drug cartel. If someone is convicted of two felonies that require jail time, then I am all for deportation. Depending on how vicious the crime was, I am for deportation after one offense if it was a violent felony, major drug offense, or some type of major theft, etc. But when someone gets charged for personal marijuana possession, no matter how many times, I don’t consider it a crime worthy of prison time and deportation. New York doesn’t even consider simple possession a crime, let alone a drug trafficking felony, and neither should the feds.
In the criminal justice system, defendants must be tried in a court of law in the same jurisdiction, unless the judge orders a change of venue do to EXTREMELY unique circumstances. However, immigration cases can be sent to anywhere in the US, at any time, and do not require a lawyer. The Bill of Rights only applies to US born nationals, not immigrants. This interpretation of the law has been around since 1996, and despite being deemed unconstitutional by 4 circuit courts, 2 other courts have upheld it. One of those was the fifth circuit, which includes Texas. This is significant, considering most immigrants are automatically transferred there, including those accused of simple marijuana possession.
This practice is in a case before the United States Supreme Court. Mr. Lemaine is not directly a part of the challenge, however his case is cited in amicus briefs, and the decision will directly affect what options he has available to him. Unlike most immigrants in his situation, Jerry Lemaine has a pro-bono lawyer from the law firm of Gibson Dunn & Crutcher, based out of New York. Mr. Lemaine’s attorney, Aaron Simowitz, tried to get a supervised release no less than three times. However, US Immigration and Customs Enforcement refused, despite the looming Supreme Court case. Finally, on the fourth time, Mr. Lemaine was conditionally released and put on a greyhound bus back to New York. Mr. Lemaine will likely end up back in front of the same judge in Texas, however, if the Supreme Court case works out, he will have a better chance of being treated fairly at least.
This is a prime example of the failed marijuana policies in America (as well as immigration policy!). This man was incarcerated for three years, paid for by American tax dollars, for possessing one joint. If marijuana were legal, or if the original officer that issued the citation wasn’t heartless, this would have never happened. If someone was to conduct a research analysis, and see how much it cost to incarcerate someone for three years for one joint, and then compare it to the ‘benefits’ of having that one joint off the street, I think the results would shock even the most conservative American.
photo – Suzanne DeChillo/The New York Times